So far as we have been able to ascertain, these two cases stand alone in American jurisprudence. They are certainly opposed to the great weight of authority, and upon principle cannot be sustained."

SUITS BETWEEN HUSBAND AND WIFE.

3

By one of the fictions of the common law, the husband and wife became one legal person and the woman by marriage lost all legal identity.1 The existence of the wife was hardly recognized; she became civiliter mortua; her legal existence was covered by, or merged in, her husband; she was called a "feme covert" and her condition "coverture."2 In fact she became legally a mere menial of the husband, and as to her property, real or personal, including choses in action, the usufruct of her real estate, the husband acquired the right to it and upon his death the wife finally took only her real estate, such personal property as the husband had not disposed of, and her personal clothing, etc., called paraphernalia. But equity following the civil law ignored the fiction of unity. The effect of modern legislation has been to do away with this common law fiction in its strictness and to recognize the separate existence of husband and wife and make them equal in all respects in the eye of the law, but technical rules of construction have led the courts to construe the statutes in a spirit so narrow and illiberal as to almost entirely defeat the intention of the law makers." It is the purpose of this article to consider the question of suits between husband and wife. By reason of the fiction above referred to, suits between husband and wife under the common law are unknown. As husband and wife are one they cannot be under obligation to each other, either in tort or contract. In

1 1 Blackst. Com. 442; Hooker v. Baggs, 63 Ill. 160; White v. Wager, 25 N. Y. 325; Burdeno v. Amperse, 14 Mich. 91; Doherty v. Madgett, 58 Vt. 323.

2 O'Ferral v. Limplot, 4 Iowa, 389; Long v. Kinney, 49 Ind. 235; Barron v. Barron, 24 Vt. 375.

3 See article, Husband and Wife, Chicago Leg. News, vol. 29, No. 49.

4 Morrison v. Thistle, 67 Mo. 596.

5 Albin v. Lord, 39 N. H. 196; Wells v. Caywood, 3 Colo. 490.

6 Larrison v. Larrison, 9 Ill. App. 27; Chestnut v. Chestnut, 75 Ill. 346; County v. Markling, 30 Ark. 17; Doe v. Daley, 8 Q. B. 934; Peters v. Peters, 42 Iowa, 182; Barton v. Barton, 32 Md. 214; Hobbs v. Hobbs, 70 Me. 177; Rosebury v. Rosebury, 27 W. Va. 759; 2 Kent, Com. 129.

9

equity, however, suits between the husband and wife have been permissible since an early date and obligations which husband and wife could mutually incur have been enforced by courts of equity. It has been held that at law a man cannot confess a judgment in favor of his wife,8 or sue his wife on a covenant to pay rent, and a wife cannot sue out a writ of scire facias against her husband on a decree for alimony,10 nor can one sue the other for assault and batteryll or for slander.12 Under the numerous statutes passed in recent years, many difficulties have arisen, and there has been considerable conflict of opinion under the various "maracts." ried woman's When & statute expressly authorizes suits between husband and wife it gives a new remedy but no right,18 so that a statute enabling a woman to sue her husband does not permit her to sue him for a personal wrong to herself, 14 and statutes authorizing married women to sue and be sued as if feme sole do not authorize suits between husband and wife except in equity,15 but the contrary view has been held. In Illinois, in the case of Emerson v. Clayton,16 the court, in commenting on commenting on an act which provided that all the property, both real and personal, belonging to any married woman, however acquired, should be her sole and separate property under her control, "and shall not be subject to the control, disposal or interference of her husband," said, "We are well satisfied that the act can have no very beneficial oper. ation in favor of married women or be effective in the protection of her separate property unless the 'sole control' conferred upon her over it is made to extend to the commencement and prosecution of suits for its recovery even against her husband, should he, contrary to her wishes and in contempt of her rights, unlawfully interfere with it."'17

7 Frankel v. Frankel, 53 N. E. Rep. 398.

8 County v. Markling, 30 Ark. 17; Contra, in Pennsylvania: Rose v. Latshaw, 90 Pa. St. 238; Lahr v. Lahr, 90 Pa. St. 507.

9 Jenne v. Marble, 37 Mich. 319.

10 Chestnut v. Chestnut, 75 Ill. 346; Stewart, M. & D. 378.

11 Peters v. Peters, 42 Iowa, 183; Schultz v. Schultz, 89 N. Y. 684; Libby v. Berry, 74 Me. 286.

12 Abbott v. Abbott, 67 Me. 307.

13 Peters v. Peters, 42 Iowa, 183.

14 Libby v. Berry, 74 Me. 286.

15 Bishop v. Bourgeois, 43 Atl. Rep. 655.

16 32 Ill. 493, 498.

17 Emerson v. Clayton, 32 Ill. 493, 498.

But the authorities in line with this decision are in the minority and, as a general rule, statutes authorizing suits as to property do not permit of personal suits between husband and wife. 18 When a statute gives a new remedy at law, it does not destroy or interfere with the old remedy in equity.19 But when it gives a new right enforceable at law, such right cannot be enforced in equity.2 It has been held, however, that the right of a wife to resort to an equity suit against her husband to protect her separate property is not taken away by statute in the absence of a prohibitory provision, even though it give her a right to sue him at law."1

20

such a debt exists, the creditor of the wife by a proceeding like the present may make the husband a garnishee with respect thereto."'25 Where at the time of marriage a man and woman are joint owners of real estate, it was held that the woman occupies the position of feme sole with respect of her interest in the property, within the meaning of the "Married Woman's Act,"26 and is under no dísability during her husband's lifetime to maintain a suit respecting her interest in such property. But under the Iowa Code, 1893, sec. 2211, providing that a wife may receive wages for her own labor and sue therefor, and may prosecute all actions for the protection of her rights and property as if unmarried, the wife has no right of action as against

27

18 Jenne v. Marble, 87 Mich. 819; Pitman v. Pitman, 4 Oreg. 298: Stewart, H. & W., sec. 15; In re Wilkinson Est., 192, Pa. St. 117, 43 Atl. Rep. 466.

19 Bispham's Prin. of Eq., ch. 2 (4th Ed.); Bridges v. McKenna, 14 Md. 258, 270.

20 Larrison v. Larrison, 9 Ill. App. 27.

21 Woodman v. Woodman, 49 S. W. Rep. 1001.

22 Scott v. Scott, 18 Ind. 225.

23 Bedell v. Parkhurst, 19 Hun (N. Y.), 358.

24 Howland v. Howland, 20 Hun (N. Y.), 472; Jones v. Jones, 19 Iowa, 236.

25 48 Md. 489. See also Tunks v. Grover, 57 Me. 586.

26 Act Cong. Apr. 10, 1869, ch. 23.

27 Quirk v. Liebert, 12 App. D. C. 394.

her husband.28 As to whether suits may be brought after the dissolution of the marriage by death of one of the parties or divorce, the rule seems to be that suits may be brought by the parties and their representatives to enforce any right which existed during coverture, but such event does not create rights, it only removes impediments to remedies. 29 In an Iowa case where, during the husband's illness, the wife took from his person a belt containing a large sum and refused to return it, and where, after her death, a claim for the sum was filed by the assignee of the husband against her estate, it was held that the possession of the money by the wife was the possession of the husband during her life; and that if, after her death, her executor takes possession of it as part of her estate, the husband may assert his right to its possession, which is then for the first time in contemplation of law denied.30 As to torts, it has been held that neither husband nor wife can maintain an action against the other for tort committed during coverture."1 It has been argued, and courts have held, that a right to sue for an injury is property, and that where this right of action exists in favor of the wife it is her property, for which she may sue;32 that, therefore, the right to maintain an action against the husband necessarily follows, but before such a conclusion can be drawn from the premises the right of the wife to maintain an action against the husband for tort must be either admitted or assumed. In other words, the argument involves the admission or assumption of the thing undertaken to be proved. Thus, a wife may sue her husband for property; when a right exists to sue for a tort, that right becomes property; the right of a wife to sue her husband for a tort exists; therefore, a wife may maintain an action against the husband for a tort. It may not be out of place here to quote from the opinion of Justice Harlan, recently handed down, in the case of Brinkman v. Brinkman, heard

28 Heathcock v. Heathcock, 79 N. W. Rep. 353. 29 Carlton v. Carlton, 72 Me. 115; Barton v. Barton, 32 Md. 214; King v. Green (Ala.), 2 Stew. 183; Abbott

v. Abbott, 67 Me. 304; Webster v. Webster, 58 Me. 139; Blake v. Blake, 64 Me. 177.

30 Davidson v. Smith's Ex., 20 Iowa, 466.

31 Peters v. Peters, 42 Iowa, 182; Filer v. N. Y. Cent. R. Co., 49 N. Y. 47.

32 Musselmau v. Galligher, 32 Iowa, 383; C., B. &. Q. R. Co. v. Dunn, 52 Ill. 260.

in the superior court of Baltimore. In this case the court considered whether a married woman can, under the act of 1898, maintain a suit at law against her husband. The court said: "In my opinion the act does not give her this power, true it is the act is broad in its terms. Sec. 5 is in the following words: 'Married women shall have power to engage in any business and to contract, whether engaged in business or not, and to sue upon their contracts, and also to sue for the recovery, security, or protection of their property, and for torts committed against them, as fully as if they were unmarried; contracts may also be made with them and they may also be sued separately upon their contracts, whether made before or during marriage, as fully as if they were unmarried, and upon judgments recovered against them execution may be issued as if they were unmarried; nor shall any husband be liable upon any contract made by his wife in her own name, nor for any tort committed by her out of his presence, without his participation or sanction.' imagine that it will hardly be contended that the legislature could have intended to give the wife power to sue the husband if it did not give the husband like power to sue the wife, and it seems to me to be reasonably plain, when the legislature in the latter part of the above section said married women 'may also be sued separately upon their contracts, and for wrongs, etc.,' ' and then went on to exempt the husband from liability for any contract made by the wife in her own name and for torts committed by her out of his presence; that the contracts and torts in contemplation of the law makers upon which she was to be separately sued were her contracts with and torts against third persons."

I

"Moreover, comprehensive as is the expression 'shall have power to sue

as fully as if unmarried,' it must be remembered that ever since the Code of 1860 (art. 45, sec. 4) it has been the written law that 'a married woman, having no trustee, may by her next friend, sue in a court of law or equity in all cases for the recovery and security of her property as fully as if she were a femme sole,' and yet, in the case of Barton v. Barton, 32 Md. 214, the Court of Appeals, quoting this section, says: "There is no doubt of the right of a married woman to sue

by next friend, either at law or in equity, any stranger, for the recovery, security or protection of her property,' but

*

'that public policy originating in the delicate relation existing between husband and wife, forbids a wife from maintaining an action at law against her husband during coverture, and her only remedy against him is by a proceeding in equity.' In view of what seems to me to be the weight of authority elsewhere, and of what our Court of Appeals say in Barton v. Barton, supra, and the remarkable, if not startling, change that would be wrought in the status of married persons, I am led to conclude that the general language of the act of 1898 ought not to receive an interpretation which would give to husbands and wives the right to maintain against each other, not only actions ex contractu, but also actions ex delicto, for assault and battery, for slander and libel, for deceit and negligence, etc."83

In some of the States, including Michigan, Iowa, Ohio and Pennsylvania, the right of the husband and wife to contract with and sue each other is expressly given. Where this is not the case, as has been stated, it has been held in a number of cases that suits between husband and wife are not authorized by general expressions giving the wife power to sue and be sued as if a femme sole.35 The principle on which these cases have been decided will be seen by quotations from the opinion of the court by Mitchell, J., in Small v. Small.36 Construing the act of June, 1887, P. L. 333, (Pa.) he says: "* It

is impossible to suppose that so important a branch of the subject as the right of action between husband and wife should not have been thought of, or being thought of, should not have been granted in unequivocal terms, if intended to be granted at all. To legislators versed in the principles of the common law, it would immediately suggest itself as a

38 Chicago Law Bulletin, Vol. 46, No. 115.

34 Markham v. Markham, 4 Mich. 305; Jones v. Jones, 19 Iowa, 236; Brenneman v. Brenneman, 1 Ohio N. P. 332; Kennedy v. Knight, 174 Pa. St. 408 (Act of 1893, P. L. 344).

35 Inglefritz v. Inglefritz, 49 Mo. 127; Smith v. Gorman, 41 Me. 405; Freetby v. Freetby, 42 Barb. 641; Kalfus v. Kalfus, 92 Ky. 542; Small v. Small, 129 Pa. 336; Alwood v. Alwood, 15 N. Y. Civ. Pro. Rep. 151; Heathcock v. Heathcock, 79 N. W. Rep. 353; Kennedy v. Knight, 174 Pa. 408.

36 129 Pa. 336.

distinct and momentous departure from the legal policy of centuries, which ordinary phraseology, however general, would not commonly be understood to intend, and it is inconceivable that under such circumstances it should be granted obscurely or by implication." What might be considered a fatal objection to this reasoning would be the query: Is the average legislator "versed in the principles of the common law?" A contrary conclusion seems to have been reached in Minnesota, Oregon, and some other States. And in Pennsylvania it seems the wife cannot maintain a suit in equity to recover her separate property, except where the husband has left her without sufficient cause, or fails to support her. 38

In concluding, it may be said that, even if expedient, space would not permit of an attempt to analyze the married woman's acts covering the legislation of over forty distinct communities. It is hoped, however, that the general principles on which some of the leading cases under the various statutes have been decided are herein set forth with sufficient clearness to be beneficial. Judging from the numerous and conflicting decisions handed down on this question, it would certainly seem that the legislatures must make their meaning plain and unequivocal, and state in so many words that the husband and wife may or may not sue each other.

Supreme Court of Errors of Connecticut, July 13, 1900. A written contract for sale of personal property was made in New York, reserving title in the sellers until full payment was made. The property was delivered to the buyers in New York for removal to Connecticut, and for use in that State in the buyers' factory. The contract complied with all provisions of New York law on the subject of conditional sales, but lacked an acknowledgment, and would therefore be an absolute sale in Connecticut, except as between he parties. Later the property was taken and sold

on execution against the buyers. Held, in a suit by the sellers against the execution purchasers, that the contract must be governed by Connecticut law, since, though it was made in New York and the property was delivered there, its whole beneficial operation and effect and its completion were to be in Connecticut, and the parties must be held to have contracted with reference to Connecticut law.

HALL, J. The property in question in this suit a stationary engine, boiler, and machinery— was taken on an execution in favor of the defendants against one Roberts; his title coming from the plaintiffs under a written contract of conditional sale executed in New York. Had it been executed here, it would have been an absolute sale, except as between the contracting parties and their personal representatives, since it was not acknowledged before some competent authority, as required by our statute. Pub. Acts 1895, ch. 212. It is conceded that by the laws of New York State it was a valid conditional contract of sale, which did not devest the plaintiffs of their title to the property in question, either as against Roberts or his assigns or creditors. Whether or not the defendants, who were Connecticut creditors of Roberts, obtained a title by the levy of their execution upon the property in Connecticut, depends entirely upon whether the validity of the contract of conditional sale is to be determined by the laws of this State or of the State of New York. From the facts that the contract was executed in New York, and the goods delivered to Roberts upon the cars in that State, it does not necessarily follow that the laws of New York govern upon the question of the validity and effect of the contract. The general rule that the lex loci contractus is applicable to the validity and construction of contracts assumes that the contract is to be performed where it is made, and the reason of the rule is that parties are ordinarily supposed to contract in view of the laws in force at the time and place of the making of their contracts. That general rule does not apply when it appears that the contract is to be performed or is to have its beneficial operation and effect elsewhere, or that it is made with reference to the laws of another place. Burnett v. Railroad Co., 176 Pa. St. 45, 34 Atl. Rep. 972; Wharton, Confl. Laws, § 401; Story, Confil. Laws, § 280. "It is an established principle that contracts are to be construed according to the law of the place in reference to which they are made." Medbury v. Hopkins, 3 Conn. 473. "Contracts are to be construed according to the laws of the State in which they are made, unless it is perceived from their tenor that they are entered into with a view to the laws of some other State." Smith v. Mead, 3 Conn. 253; Greathead v. Walton, 40 Conn. 226-236. "The general rule that the lex loci contractus shall govern is theoretically, at least, founded upon the presumed intention that the parties contracted with reference to that law; and when the contract is to be performed elsewhere, or is to have its entire beneficial operation and effect elsewhere,

* *

then the law of the latter place is to govern, because, in the absence of anything to the contrary, it is presumed that the parties so intended." Chillingworth v. Tinware Co., 66 Conn. 306–317, 33 Atl. Rep. 1009. In the case last cited a chattel mortgage was executed and was assumed to have been delivered in New York State by a New York corporation to a New York creditor. The mortgaged property consisted of machinery and implements in use in a factory in Connecticut, and was so described in the mortgage. On the day after its execution in New York it was recorded in the land records in Connecticut, where the property was situated. The mortgage was made in contemplation of insolvency, and was for that reason void by the laws of New York State. This court held that the mortgage was intended to have its entire beneficial operation and effect here," and that, under the circumstances, the mere fact that the instrument was formally executed and delivered in New York was not of itself decisive of the question as to what law should control in determining the validity of the mortgage, and that the mortgage was valid in this State until set aside by insolvency proceedings. The purposes of the conditional contract of sale in the present case were these: To ultimately transfer, upon the payment of the purchase price as agreed, the title to the property in question from the plaintiffs to Roberts; to give to Roberts in the meantime, and while he performed his covenants, the use of the property; to secure the plaintiffs against loss, by enabling them to retake the property upon Roberts' failure to pay his notes, and by preventing a sale of the property by Roberts to third parties, or a taking of it by attachment by his creditors. For the accomplishment of these purposes the parties intended that the property should be located in Connecticut. The agreement expressly provides that the boiler, engine, etc., shall be "located, used, and employed" by Roberts "in his factory, in the city of Stamford," and that they shall not be removed from these premises without the written consent of the plaintiffs. The property was delivered upon the cars in New York, to be transported to Connecticut. In pursuance of the terms of the agreement, it was taken by Roberts to Stamford, and a year afterwards was attached there by a Connecticut creditor of Roberts. While the formal execution of the contract was in New York, the principal acts necessary to effect its objects were by the terms of the contract to be performed in Connecticut. As affording to the plaintiffs a security upon the property described, and as transferring to Roberts the apparent ownership of the property by giving to him the possession, the right to use, and even the right to affix it to realty, and as granting to him the absolute title upon payment of the purchase price, the contract was intended to have its operation upon property situated in Connecticut. Excepting that the contract was not acknowledged, it conformed to our law re

garding conditional sales. The next day after it was executed it was recorded in the Stamford land records, as required by the law of Connecticut. As was said in Chillingworth v. Tinware Co., supra, the contract was to have its "beneficial operation and effect" here. The transaction was begun in New York, but was to be performed and completed here, and the parties must be held to have contracted' with reference to the law of this State, and that law must govern. Whether the contention of the defendants may not also be sustained upon considerations of public policy, upon the grounds taken in Hervey v. Locomotive Works, 93 U. S. 664, 23 L. Ed. 1003; Harkness v. Russell, 118 U. S. 678, 7 Sup. Ct. Rep. 51, 30 L. Ed. 285; Loom Works v. Vacher, 57 N. J. Law, 490, 31 Atl. Rep. 306; Safe Co. v. Norton. 48 N. J. Law, 410, 7 Atl. Rep. 418; and Thompson v. Taylor (N. J. Sup.), 46 Atl. Rep. 567, need not be determined by us in this case. The court of common pleas is advised to render judgment in favor of the defendants. Costs in this court to be taxed in favor of the defendants. The other judges concurred.

NOTE.-Recent Cases on the Subject of What Law Governs in the Construction and Interpretation of Contracts.-A written agreement, executed in Eng. land, whereby an English corporation agrees to transport a citizen of the United States from England to this country, is to be construed according to the Eng. lish law. Potter v. The Majestic, 9 C. C. A. 161, 60 Fed. Rep. 62. Where a borrower lives in Minnesota, and the lender in Connecticut, where the notes were madej payable, the parties may stipulate that the notes shall be construed by the laws of Minnesota. Smith v. Parsons (Minn.), 57 N. W. Rep. 311. An equitable lien upon personalty created by a con. tract for sale thereof in Arkansas is enforceable in the Indian Territory after the purchaser has removed thither with the property. Riddle v. Hudg. ins, 7 C. C. A. 335, 58 Fed. Rep. 490. A note made by a married woman was dated in Kansas, executed in Missouri, and delivered in Kansas. Held, that it was a Kansas contract, as it was the delivery that com. pleted it, and it would be enforced in a Missouri court, according to its binding force under the laws of Kansas. Phoenix Mut. Life Ins. Co. v. Simons, 52 Mo. App. 357. A note executed in one State, and payable in another, is governed, as to defenses against an indorsee, by the law of the latter State, though sued on in the State wherein it was executed. Sturdivant v. Memphis Nat. Bank, 9 C. C. A. 256, 60 Fed. Rep. 730. A contract, made in Wisconsin between a railroad company and a shipper, for transporting live stock and emigrant movables from a point in that State to a point in South Dakota, is to be interpreted by the law of the former State. Mener v. Chicago, M. & St. P. Ry. Co. (S. Dak.), 59 N. W. Rep. 945. A contract of life insurance between a foreign insurance company and a non resident is subject to the laws of the State in which it is made as to forfeiture for non-payment of premiums. Hicks v. Nationa! Life Ins. Co., 9 C. C. A. 215, 60 Fed. Rep. 690. By contract made in Iowa, plaintiff agreed to deliver beer f. o. b. cars at M, in Wisconsin, whenever ordered by defendant in Iowa, defendant to pay therefor on demand, the contract to be in force for one year. Held, that this was only a conditional agree.